Steven J. Harper, a Harvard Law grad and 30-year litigator at Kirkland & Ellis, has weighed in on the problems and suggested some solutions in The Lawyer Bubble. It’s the perfect book for a terrible time.

If every Biglaw partner, law professor, and law school dean read this book and followed its prescriptions, we just might get our profession back on track. Will it happen? I’m not optimistic. If law was once an honorable profession with a few greedy bad apples, those bad apples have ruined the whole bunch. Law schools and law firms had ethics and pride in doing important work well, and exchanged them for cash and ostensible prestige. Once you cross that line, can you really go back? I’m not sure there’s a parachute to pull us out of this free fall.

But read the book anyway, because Harper’s analysis is spot-on, his writing is mostly terrific, and his prescriptions are thoughtful.

We hates the law schools, we hates them forever

Harper begins, logically, with the law’s “gatekeepers,” the law schools. Like Brian Tamanaha’s insider account, Failing Law Schools, Harper describes in detail the transformation of law schools from academic institutions to cash cows for law professors and universities. It’s all here: the yank-back scholarships, the employment reporting lies, the transfer student scam (transfer students’ LSAT scores don’t count in the US News ranking formula—so their tuition is no-risk school income), the tuition hikes, and on and on. Harper describes it all in a tone that allows him to display both his dispassionate lawyer’s mind as well as subtle but acrid sarcasm.

Harper’s best prescription for law schools is straightforward but explosive: make the law schools underwrite all student loans or become otherwise financially responsible for them. I love this idea. Will it happen? Crickets. Federal law could force this change, but when you realize that Congress is the only solution, you realize there’s probably no solution.

Biglaw: greed is good!

Harper, like others, blames American Lawyer magazine’s revelations of Biglaw partners’ salaries as the beginning of a fundamental change of focus. The Am Law 50 (later Am Law 100) made public what had been private: how much did these people actually make? Ironically, transparency led to negative rather than positive change, as the American need to compete and win whenever numbers, rankings or lists are involved took over.

Meanwhile, “padding” billing hours (translation: defrauding clients) became the dirty secret of the associate’s working life. And the downward spiral continued as unhinged greed and domination by rainmaker partners led to the fall of Dewey & LeBoeuf, which Harper devotes a chapter to here. Notably, Biglaw attorneys have the lowest levels of job satisfaction in the profession. So money buys unhappiness, but the supposedly smartest students at the supposedly best law schools seem to think that being desperately unhappy and well-paid means you are in fact happy. (Someone please explain this to me.)

Harper’s prescriptions for improving Biglaw require Biglaw to decide to improve itself. I’ll leave it to those who work or have worked in Biglaw to decide who (Biglaw or Congress) is a more likely agent of positive change in the legal profession.

Summary

The Lawyer Bubble—A Profession in Crisis
Reviewed by Andy Mergendahl on April 4, 2013.

If there’s any chance for the legal profession to pull itself out of its death-spiral (or at least zombie-spiral), it will be because of books like this: fact-driven, realistic, passionate works by lawyers who have enjoyed all the benefits that lawyering can provide, but who refuse to simply take the money and walk away. Harper has nothing to gain from writing this book, unlike the scam bloggers, who have nothing to lose. So there’s a slim chance that enough powerful people might actually pay attention to make a difference. But don’t bet your paycheck on it.

Andy Mergendahl is a privacy officer at a large commercial bank. He's also been a solo practitioner and a judicial law clerk. He considers himself a foot soldier in the War on Legalese (also known as the War Without End). Andy enjoys collecting names for bands that do not (yet) exist, being a runner (but not the act of running so much), and the bourbon Old Fashioned at Eat Street Social in Minneapolis. Follow him on Twitter @andymergendahl

Nothing to gain (and plenty to lose) in terms of his reputation among most of his peers, including many of his former law firm colleagues. And I seriously doubt he’s going to add much to his bank account with this book.

GG222

I find it incredible that a contract negotiator for a national commercial bank has the balls to bemoan BigLaw attorneys’ lack of ethics in pursuit of profits.

Andy Mergendahl

Not having worked in Biglaw (as I pointed out), my review was an attempt to describe what Harper wrote, not to report as an outraged eyewitness. I would never suggest that banks are above criticism. But at my current job, I have never experienced (for instance) pressure to directly defraud anyone. So I’m puzzled about where your incredulity is coming from.

Jay

I’ve yet to read this book, though I will order it now. However, who better to outline and describe the complex problems of the Biglaw world other then someone who was himself drawn into the depths of the the problems? I’d rather that type of a person as the author than some law school scholar that has not practiced in decades, if ever.

I wrote a book in 2011 with what I believe is a complementary theme to this topic:

“How To Avoid the Law School Trap and Achieve Lasting Success in the 21st Century”

My focus, rather than slamming the legal profession, was to advise young people on the truth about law practice. to give an alternative executive career and skill guide that could be easily followed, and to get law schools to broaden the curriculum to include these alternative executive skills so the graduates are marketable in other disciplines besides law.

I could never get the ABA or the Law School Dean Association or for that matter, a whole slew of education reporters (with the exception of a gracious and intelligent US Today reporter who at least returned a call and interviewed me).

Head in the sand is not helping our young people. Legal services are being offered in one way shape or form through alternative providers – consultants, CPAs, investment banks, regulatory consultants. The ABA has promoted the provision of “contract attorney” services where the sale placement people take at least half of the compensation, and have driven down the value of the service offered, thus demeaning the value of the attorney in the eye of the public, never mind getting in the way of the attorney-client relationship.

My advice to young people? Forget about law school of college. Get into executive sales or management. Make a lot of money and create a “family” (whether it’s friends,
significant others, children, community, however you define “family”). Volunteer and donate for causes that will protect the poor, the innocent and the globe. If you still want to go to law school after all these accomplishments (even in your thirties or later), by all means go. You’ll have a world of experience, practical wisdom, and professional connections to draw from to build a practice, hopefully on your terms, and you’ll have financial and executive resources to fall back. I want to see you “bulletproofed” from any economic recession. Good luck!

Paula Argento

Re my last comment,
Would you be able to change USA Today to US News and World Report -I
confused the reporter’s orgin.

Also the first sentence needs something like “right out of college” – I omitted a word.

Clearly, there is an oversupply of lawyers. That being said, to some extent lawyers create their own demand. Unlike good doctors or engineers, if one party is involved in litigation, it creates a demand for lawyers for the other side(s). In what other profession is that the case if their is no negligence or malpractice? This situation will not end the oversupply problem.

Law schools are clearly at fault for creating a large share of the problem. The marginal costs of accepting an additional law student is very small compared to say, medical school or the natural sciences. Law schools are major profit centers for universities, like successful sports teams.

Law schools are probably liable for exaggerating their success in the job placement results of their graduates (both in terms of percentage employed soon after graduation and income). How many lawyers are still practicing law 10 years after graduation?

Since many law school graduates are not ready to practice law upon completion of their “education” (especially those who did not work part-time during law school for firms, governments, or NGOs), the burden for training young lawyers fall on the employers.

If law firms due to the economic slowdown do not have enough work to give them to perform (most clients don’t want to pay to train young lawyers) and the firm’s finances are such as to make pro bono work or training inadequate, the pool of qualified lawyers will shrink.

It is likely there will be a giant financial crisis if law students who are unable to find jobs refuse to pay off their student loans claiming that the law schools committing fraud or were guilty of breaching contracts. Given the proper circumstances, I would certainly take on such cases.

Part of the problem is that many law schools do not offer practical skills. A large share of law school faculties have little practice experience. If law schools prepared students for practice, bar review courses would not be a thriving industry.

As one of my co-authors on a law review articled remarked at a “debate” at UVA Law School, how can one purport to be qualified to teach civil procedure, evidence or ethics if they have never first chaired a trial in their lives?

My own query is what type of person would one be if such person allowed one of their parents to be operated upon for a complex and life-threatening condition, if the doctor performing the surgery was “trained” by someone who had not performed the relevant operation in the last ten years?

Technological change has its impact not merely in medicine, but in all aspects of life — each aspect of which has a body of law that regulates the conduct or sets standards/norms for judging competence.

It is amazing what passes for scholarship today. Personally, I am glad my son is studying engineering.